This decision of the Fair Work Commission examines the distinction between a dismissal at the initiative of the employer and abandonment of employment.
“BACKGROUND
[1] dnata Airport Services Pty Ltd (dnata) operates a cargo delivery facility in Sydney. Md
Abdullah Haque commenced employment with dnata on 12 March 2025 as a Cargo Service
Delivery Agent. Mr Haque raised several concerns about the conduct of co-workers during his
employment. Mr Haque was separated where possible from working with another employee
after issues arose in August 2025. Mr Haque raised serious concerns about the conduct of two
other employees towards a female staff member on 8 December 2025. The other employees
strongly deny any wrongdoing. Doug Kilner (Import Warehouse Manager) sent Mr Haque
home early from a non-rostered pickup shift on 9 December 2025 after the two other employees
complained about rumours that had allegedly been circulated by Mr Haque about their conduct.
Mr Haque did not attend work for his next rostered shift and did not respond to several attempts
to contact him via phone and email. On 22 December 2025, Clarice Gillies (HR Business
Partner – Cargo Operations) sent a letter to Mr Haque via email. The letter raised concerns that
Mr Haque had abandoned his employment and stated that dnata will assume that Mr Haque had
voluntarily resigned from his position if he did not explain his absence within five working
days. Mr Haque said he did not view this email until 5 January 2026, which was after the five
working day period had expired on 31 December 2025. Mr Haque filed a general protections
dismissal application on 13 January 2026 pursuant to s.365 of the Fair Work Act 2009 (FW
Act). Mr Haque’s application identified a dismissal date of 31 December 2025. dnata argued
that Mr Haque’s employment with dnata ended at his initiative because he abandoned his
employment which constituted a renunciation of his employment obligations. This decision
concerns whether Mr Haque was dismissed within the meaning of s.386 of the FW Act.
[2] I conducted a hearing in Sydney on 4 May 2026. dnata relied on evidence from Mr
Douglas Kilner (Import Warehouse Manager), Ms Prechyss Rangiwhaiao (Cargo Service
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DECISION
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Delivery Agent), and Mr Mathew Owen-Barrett (Cargo Supervisor). Mr Haque provided
evidence in support of his position.
[3] I acknowledge that it has been difficult for dnata to respond to Mr Haque’s application
because Mr Haque has not clearly articulated how the end of his employment relationship falls
within the meaning of a dismissal in s.386 of the FW Act.
AUTHORITIES
[4] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli1
, the
Full Bench conducted an extensive survey of relevant authorities dealing with the expression
‘termination on the employer’s initiative’ and considered the effect of the inclusion of
s.386(1)(b) in the Act. The Full Bench distinguished the two limbs of s.386(1) (at [47]) as
follows:
“Having regard to the above authorities and the bifurcation in the definition of “dismissal”
established in s 386(1) of the FW Act, we consider that the position under the FW Act
may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s 386(1)(a) where,
although the employee has given an ostensible communication of a resignation, the
resignation is not legally effective because it was expressed in the “heat of the
moment” or when the employee was in a state of emotional stress or mental
confusion such that the employee could not reasonably be understood to be
conveying a real intention to resign. Although “jostling” by the employer may
contribute to the resignation being legally ineffective, employer conduct is not a
necessary element. In this situation if the employer simply treats the ostensible
resignation as terminating the employment rather than clarifying or confirming with
the employee after a reasonable time that the employee genuinely intended to resign,
this may be characterised as a termination of the employment at the initiative of the
employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the
employer will be a dismissal within the second limb of the definition in s 386(1)(b).
The test to be applied here is whether the employer engaged in the conduct with the
intention of bringing the employment to an end or whether termination of the
employment was the probable result of the employer’s conduct such that the
employee had no effective or real choice but to resign. Unlike the situation in (1),
the requisite employer conduct is the essential element.”
[5] A Full Bench of the Commission in the 2018 Abandonment of Employment2
case
explained how abandonment of employment can be considered a termination at the initiative of
the employee:
‘“Abandonment of employment” is an expression sometimes used to describe a situation
where an employee ceases to attend his or her place of employment without proper
excuse or explanation and thereby evinces an unwillingness or inability to substantially
perform his or her obligations under the employment contract. This may be termed a
renunciation of the employment contract. The test is whether the employee’s conduct is
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such as to convey to a reasonable person in the situation of the employer a renunciation
of the employment contract as a whole or the employee’s fundamental obligations under
it. Renunciation is a species of repudiation which entitles the employer to terminate the
employment contract. Although it is the action of the employer in that situation which
terminates the employment contract, the employment relationship is ended by the
employee’s renunciation of the employment obligations.”
CONSIDERATION
[6] I consider it is hardly surprising that dnata sought to bring its employment relationship
with Mr Haque to a conclusion after he became uncontactable following the events that led to
him being sent home from work on 9 December 2025. Although it is clear Mr Haque felt
extremely aggrieved about his perceived unjust treatment on 9 December 2025, Mr Haque
should have informed dnata about whether he was planning to attend work so dnata knew
whether they needed to replace him. That was hardly an onerous requirement.
[7] This case highlights the difficulties associated with trying to determine whether an
employee has abandoned their employment or whether they have been dismissed because of an
unauthorised absence or failure to attend work. I have doubts about whether the FW Act intends
to exclude the circumstances commonly referred to as an “abandonment of employment” from
the meaning of a dismissal in s.386 of the FW Act. I consider the better view is that the
employment ends at the initiative of the employer because the employer dismisses the employee
for failing to attend work without explanation. In most cases, the employer will be reasonably
well placed to explain why the dismissal was not unfair and was not in breach of the general
protections by reference to the conduct of the employee. I consider that is a much simpler and
more efficient approach than trying to apply the complicated contractual concept of
renunciation.
[8] In any event, given the Full Bench decision in the 2018 Abandonment of Employment
case, I will assume that a case of abandonment of employment falls outside the meaning of a
dismissal under s.386 of the FW Act.
[9] I consider the evidence demonstrates on the balance of probabilities that the following
occurred:
(i) Mr Haque was sent home early from a non-rostered pickup shift on 9 December
2025 by Mr Kilner as a pragmatic solution given the conflict that had arisen
between Mr Haque and other employees.
(ii) The next steps in relation to Mr Haque’s employment were not entirely clear
when Mr Haque left the worksite on 9 December 2025. The arrangements are
not recorded in writing. The evidence does not suggest that Mr Kilner told Mr
Haque that he was dismissed on 9 December 2025. The evidence suggests Mr
Kilner stated he would continue investigating the matter and update Mr Haque
in due course. I consider there was a degree of confusion between Mr Haque and
Mr Kilner about what would happen next.
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(iii) Mr Haque did not attend rostered shifts after 9 December 2025 and was not able
to be contacted by dnata.
(iv) Mr Haque did not view Ms Gillies’ letter dated 22 December 2025 until 5
January 2026 by which time the five working day period identified in the letter
had expired.
(v) When Mr Haque viewed the letter dated 22 December 2025, he commenced
seeking advice from the Commission and other sources about steps he could take
to challenge his perceived dismissal. That ultimately led to Mr Haque filing a
general protections application on 13 January 2026.
(vi) dnata decided to process Mr Haque’s termination on 12 January 2026.3
[10] In NSW Trains v James4
, a Full Bench of the Commission stated:
“The High Court has described repudiation as referring to conduct of a party ‘which
evinces an unwillingness or an inability to render substantial performance of the
contract’ or ‘which evinces an intention no longer to be bound by the contract or to fulfil
it only in a manner substantially inconsistent with the party’s obligations’. ‘Repudiation
of a contract is a serious matter and is not to be lightly found or inferred’. The test is
whether the conduct of one party is such as to convey to a reasonable person, in the
situation of the other party, renunciation either of the contract as a whole or of a
fundamental obligation under it.”
[11] I do not consider the factual findings identified above are sufficient to establish that Mr
Haque repudiated his employment contract. I consider the conduct of Mr Haque would have
conveyed to a reasonable person that a substantial dispute had arisen between Mr Haque and
dnata about his employment and that the dispute was some way from being resolved.
[12] I also consider the language used in Ms Gillies’ letter dated 22 December 2025 is more
consistent with dnata being the party that was making the decision to end the employment
relationship. Ms Gillies’ letter stated:
“As you are aware, and as outlined during your employment and induction with dnata,
you are required to notify your Manager of any absence from rostered shifts and to seek
approval for any leave of absence.
Given the lack of attendance and communication, dnata considers your absence to be
unauthorised and may constitute abandonment of your position as a Cargo Delivery
Agent.
Unless we receive written communication from you within five (5) business days of the
date of this letter, explaining the reason for your absence and confirming your intention
to return to work, dnata will assume you have voluntarily resigned from your position.
In this circumstance, your employment will be terminated accordingly.
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If there are any extenuating circumstances that have prevented you from contacting the
business, you are strongly encouraged to advise us immediately so that these matters
may be considered.
Please contact myself … by no later than Wednesday, 31 December 2025, to discuss
your employment status.”
[13] Ms Gillies’ letter states “dnata considers your absence to be unauthorised”, “dnata will
assume you have voluntarily resigned”, and “your employment will be terminated accordingly.”
This language is consistent with dnata being the party that was making decisions about whether
Mr Haque’s employment would continue. dnata ultimately decided to process Mr Haque’s
termination on 12 January 2026. It is unclear why that date was selected. However, it was dnata
that unilaterally decided to process Mr Haque’s termination on 12 January 2026.
[14] I consider it was the act of dnata which resulted directly or consequentially in the
termination of Mr Haque’s employment, and the employment relationship was not voluntarily
left by Mr Haque. That is, had dnata not taken the action it did, Mr Haque would have remained
in the employment relationship. 5
[15] I find that Mr Haque’s employment was terminated at the initiative of dnata on 12
January 2026.
CONCLUSION
[16] I find that Mr Haque was “dismissed” within the meaning of s.386(1)(a) of the FW Act.
[17] I dismiss dnata’s jurisdictional objection.
[18] Mr Haque’s application will be listed for a conciliation conference in due course.
[19] I encourage Mr Haque to attend the conciliation conference with realistic expectations
given his reasonably short period of employment and because he repeatedly failed to
communicate with dnata from 9 December 2025.”
Mr Md Abdullah Haque v dnata Airport Services Pty Ltd [2026] FWC 1698 delivered 11 May 2026 per Crawford C